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Judgment
Heard both sides
The defendants 1 and 2 in O.S. No. 11 of 2005, on the file of the Principal District Judge, Pudukottai, are the revision petitioners herein.
The respondents 1 and 2 filed the above suit O.S. No. 11 of 2005 for partition of their . share in the suit Items 1 to 4 and for declaration of title
in respect of Item No. 5 stating that it also belongs to the plaintiffs and the defendants 1 and 2 and the plaintiffs are entitled to half share together in
Item No. 5 of the suit property.
The case of the plaintiffs is that the 1st plaintiff is the widow of Dr. Selvaraj and the 2nd plaintiff is her son and the defendants 1 and 2 are the
children of Dr. Selvaraj through his first wife. The properties in Item Nos. 1 and 2 were purchased in the names of the defendants 1 and 2 by Late
Dr. Selvaraj and the 1st plaintiff and it was in the control and possession of the 1st plaintiff and her husband and the 3rd item was purchased by
Dr. Selvaraj in his name and the 5th item was purchased by the 4th defendant in his own name, though the consideration for the same was also
provided by Dr. Selvaraj and 1st plaintiff and without the knowledge of Dr. Selvaraj, the 4th defendant purchased the 5th item of property in his
own name and the plaintiffs and defendants 1 and 2 all are entitled to . share in that property also. It is further stated in the plaint that the 3rd item
of the suit property is worth more than Rs. 50,00,000/- and the 4th defendant namely, the 4th respondent herein, in collusion with the 5th
respondent obtained a power from the revision petitioners 1 and 2 in the name of the 4th respondent and entered into a sale transaction with the
5th respondent as if the property was sold by the 4th respondent as a power agent of the revision petitioners 1 and 2 to the 5th respondent and the
sale is not a valid sale and that will not affect the right of the respondents 1 and 2, who are the plaintiffs claiming share in the suit property also. The
defendants 1 and 2 viz., the revision petitioners herein filed a statement denying the status of the first respondent/first plaintiff as the 2nd wife of Dr.
Selvaraj and the further allegations that the 2nd plaintiff was born to the first plaintiff through Dr. Selvaraj.
It is further stated that the revisions petitioners alone are the legal heirs of Dr. Selvaraj and the plaintiffs are not the legal heirs of Dr. Selvaraj and
the Item Nos. 1 and 2 are the properties belong to the defendants 1 and 2 and the plaintiffs have no right over the same. The 3rd item was the
property of Dr. Selvaraj and the 3rd item was sold by the revision petitioners through their power Agent to the 5th respondent under a registered
sale deed, dated 30.06.2004 for valuable consideration and the sale deed is a valid sale deed and the plaintiffs, who have no right over the
property cannot question that sale transaction.
In the written statement, the defendants 1 and 2 vz., revision petitioners accepted the sale of 3rd item of property by their power agent, the 4th
respondent herein, in favour of the 5th respondent. In respect of other two items of properties viz., 4th and 5th items, the revision petitioners
contended that they are the properties belonging to Dr. Selvaraj and as his children, they alone are entitled to claim that property and the
respondents 1 and 2 viz., the plaintiffs cannot claim right in that property. In respect of Item No. 5, the revision petitioners denied the allegations of
the plaintiffs that the 4th respondent practised fraud and obtained the sale deed in his favour and contended that the 5th item of the property
belongs to the 4th respondent and it was not the property of Dr. Selvaraj.
After the trial has commenced and after the examination of the plaintiffs witnesses and after filing of proof affidavit by the first defendant, the
defendants 1 and 2 filed application in I.A. No. 91 of 2005 in O.S. No. 11 of 2005 seeking permission to file additional written statement and in
the affidavit filed in support of the said application, it has been stated that the 4th and 5th defendant viz., the respondents 4 and 5 herein played
fraud on them and in order to emphasis some vital facts, they are advised to file the additional written statement and therefore, sought the
permission of the Court to file the additional written statement and in the additional written statement, the revision petitioners contended that after
the death of their father, the 4th defendant was in contact with them and they trusted the 4th defendant and believed that he would not go against
their interest. It is further stated that the 4th defendant engaged their counsel and conducted the case on their behalf and the written statement filed
by them was also prepared at the instance of the 4th defendant and they never knew about the contents of the written statement filed in their name
and without informing them, the 4th defendant sold the property to the 5th defendant and the sale deed is not a valid one and the sale is a sham
transaction and with the intention of grabbing that property, the 4th defendant by misusing the power given to him created a sale deed in favour of
the 5th defendant and the sale in favour of the 5th defendant in respect of Item No. 5 is not valid.
The 4 and 5th respondents, who are the defendants 4 and 5 in the suit, filed counter objecting to the receipt of the additional statement stating
that the defendants 1 and 2 viz., the revision petitioners herein, in collusion with the plaintiffs, the respondents 1 and 2 herein and with the intention
of defeating the rights of the defendants 4 and 5 is attempting to project a new case in respect of item No. 3 and the plea taken by the defendants
by way of additional written statement introduces a new case, which is mutually destructive of their earlier stand and the 4th defendant also denied
the fraud alleged to have been played by him on the revision petitioners and by allowing the defendants 1 and 2 to file the additional written
statement, the 4th defendant will be prejudiced. The 5th defendant viz., the 5th respondent herein also reiterated the same allegation in his counter.
The learned Principal District Judge dismissed the application to receive the additional written statement holding that the revision petitioners have
taken mutually destructive plea in the additional written statement, which are contrary to the stand taken by them in the original written statement
and having accepted in the written statement that the 4th respondent is their power agent and he executed the sale deed as their power agent in
favour of the 5th respondent/5th defendant in respect of 3rd item of property and the sale is also a genuine and valid one and they wanted to resile
from the earlier stand and to take a new stand by which the benefits accrued to the respondents 4 and 5 is sought to be taken away, which is not
permitted under law. Aggrieved by the same, this civil revision petition is filed by the revision petitioners.
It is submitted by the learned Counsel appearing for the revision petitioners that the defendants are entitled to take mutually destructive plea
and the plea taken in the additional written statement is not destructive in nature and in the additional written statement, they wanted to explain
certain facts which came to their knowledge latter and the Courts have held that liberal approach must be taken in the matter of receipt of the
additional written statement and hence, the lower Court erred in dismissing the application. They also relied upon the judgment of this Honourable
Court reported in Damayanthi Kailasam Vs. Mrs. D.F. Philips, Lt. Col. C.C. Philips, Mrs. Rajeswari Shinde and Mrs. Jayanthi, ; in 2009 (7) MLJ
1081 (SC) in the case of Muthuraman Vs. Muthukumaran, in the case of Muthuraman v. Muthukumaran; in 2007 (1) LW 429 in the case of
Thiyagarajan v. Manivannan and in 2007 (4) MLJ 1098 in the case of S. Suresh v. Sivabalakannan and Ors.
On the other hand, the learned Counsel appearing for the respondents 4 and 5 submitted that if the additional written statement is allowed to
be filed, the valuable admission made by the defendants 1 and 2 in the original written statement will be nullified and by reason of that, the benefits
accrued to the respondents 4 and 5 by the earlier admission will be taken away, which is prohibited under law and therefore, the Courts below
rightly rejected the application of the revision petitioners.
They further contended that in the additional written statement mutually destructive plea has been taken and as held by this Court in the
judgment reported in 2007 (1) CTC 586 in the case of R.S. Nagarajan v. R.S. Gopalan and Ors. such a plea cannot be allowed to be taken in the
additional written statement. The learned Counsel appearing for the respondents 4 and 5 also relied upon the judgment of the Honourable Supreme
Court reported in Gautam Sarup Vs. Leela Jetly and Others, . and the judgment reported in Vidyabai and Others Vs. Padmalatha and Another, in
support of their contention. It is further contended by them that in the original written statement, the revision petitioners have admitted that the sale
by the 4th defendant as their power agent in favour of the 5th respondent in respect of Item No. 5 is a genuine sale deed and it is an admission by
the revision petitioners and that admission cannot be allowed to be erased and the plea taken in the additional written statement is not an alternative
relief, but it is the mutually destructive plea taken by the revision petitioners and therefore, the revision petitioners are not entitled to file the
additional written statement.
I have given my anxious consideration to the submissions made by both the counsels.
In this case, the respondents 1 and 2 filed a suit for partition stating that the Item Nos. 1 and 2 though purchased in the names of the
defendants 1 and 2 viz., the revision petitioners herein, they belonged to Late Dr. Selvaraj, who was the father of the revision petitioners and the
2nd plaintiff and the husband of the first plaintiff and the 3rd and 4th items were purchased in the name of Dr. Selvaraj and the 5th item was
purchased by the 4th defendant with the consideration provided by Late Dr. Selvaraj and therefore, the plaintiffs are entitled to . share in these
properties. The revision petitioners in the written statement disputed the status of the plaintiffs as the wife and son of the Late Dr. Selvaraj. They
further contended that the 3rd item of the suit property was sold by the 4th defendant as their power agent for valuable consideration to the 5th
respondent/5th defendant and that sale is a valid and genuine sale and the plaintiffs are not the legal heirs of the deceased Dr. Selvaraj and they
cannot challenge the same.
In the written statement, originally filed by the revision petitioners, they admitted the execution of the power in favour of the 4th respondent. In
the additional written statement, they have taken the plea that the 4th respondent played fraud on them and after the death of their father, the 4th
respondent was taking care of them and they trusted the 4th respondent and executed a power in his favour and the 4th respondent took
advantage of the power sold the 3rd item in favour of the 5th respondent for a lesser consideration, though the property is worth more than 17
lakhs and the sale is not valid under law and they are not bound by the same. It is further admitted that while plaintiffs witnesses were examined, no
such plea was taken as claimed in the additional written statement. Even, while filing the proof affidavit, the first defendant did not take such stand
and only after the case was posted for the cross examination of the first defendant, the 1st defendant has come forward with the application for
receipt of the additional written statement and has taken a different stand in respect of the 3rd item of the property and in the additional written
statement, he also questioned the competency of the 4th respondent to execute the sale deed and also made allegations against the 4th defendant.
In such circumstances, we will have to see whether such application for filing additional written statement can be permitted. It is settled principles of
law that in the written statement, the defendant is entitled to take mutually inconsistent plea and he is not permitted to take mutually destructive
plea. Further, in the additional written statement though the defendant is entitled to take inconsistent plea, he is prohibited from introducing a new
case or taking a mutually destructive plea. Further, the Courts have held that the Courts must be liberal in receiving the additional written statement
and the principles, which govern the amendment of written statement should not be imported in the case of receipt of the additional written
statement. In the case of amendment of written statement, if the defendant wants to erase or delete admission or statement made in the original
statement and introduce a new set of facts by which the benefits accrued to the parties by reason of the admission made by the defendants in the
original written statement is taken away and therefore, in such circumstances, the Courts have held that when by reason of the amendment of the
written statement, the admission made by the defendants are sought to be erased and a new case is put forward that should not be allowed.
It has been held in the judgment reported in Gautam Sarup Vs. Leela Jetly and Others, . which affirmed the principles laid down in Modi
Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., held as follows;
It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative
pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such
amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the
defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.
Therefore, when the admissions made earlier were allowed to be taken back by reason of the amendment, the plaintiffs will be irretrievably
prejudiced and in such cases, the defendant should not be allowed to amend the written statement by deleting admission made earlier and to
introduce a new case. This was explained in the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, :
Therefore, it was neither a case of withdrawal of admission made in the written statement nor a case of washing out admission made by the
appellant in the written statement. As noted herein earlier, by such amendment the appellant had kept the admissions intact and only added certain
additional facts which need to be proved by the plaintiff and defendants 2 to 8 to get shares in the suit properties alleged to have been admitted by
the appellants in their written statement. Accordingly, we are of the view that the appellants are only raising an issue regarding the legitimacy of the
plaintiff and defendants 3 to 7 to inherit the suit properties as heirs and legal representatives of the deceased Appasao, Therefore, it must be held
that in view of our discussions made herein above, the High Court was not justified in reversing the order of the trial court and rejecting the
application for amendment of the written statement.
In that case, the Honourable Supreme Court has held that when the admissions are kept intact and by way of amendment only additional facts are
stated, such amendment can be allowed.
In this case also, the earlier admission made by the revision petitioners in the original written statement are kept intact and in the additional
written statement, they also admitted the execution of the document in favour of the 5th respondent, but only have taken a new plea that the 4th
respondent has played fraud on them and sold the property in favour of the 5th respondent.
Further in the judgment reported in 2009 (6) MLJ 933 in the case of E.O. Mohammed Ali v. Dessi Ammal Alias Jessima Deevi and Ors. this
Court has held that when no inconsistent stand has been taken in the written statement it can be allowed.
Further this Court has held in the judgment reported in 2007 (4) MLJ 1098 in the case of S. Suresh v. Sivabalakannan that leave to file
additional written statement is to be granted liberally, except when the defendant raises mutually destructive pleas or tries to introduce a new case
altogether by way of filing an additional written statement.
It has been held in the judgment reported in Muthuraman Vs. Muthukumaran, that object of filing of additional written statement is to supply
what might have been omitted in written statement filed earlier and such additional written statement can be allowed if it is not likely to cause
prejudice to plaintiff.
The Honourable Supreme Court in the judgment reported in 2009 (7) MLJ 1081 (SC) in the case of Olympic Industries v. Mulla Hussainy
Bhai Mulla Akerally and Ors. held that introducing new ground of defence in additional counter statement is not ground for dismissing application
so long as same does not result in causing grave injustice and irretrievable prejudice to plaintiff.
In the judgment reported in Subramanian and three others Vs. Jayaraman, it has been held that subsequent pleadings by defendant even though
contradictory to the original written statement, could be taken in the form of additional written as plea of res-judicaita and estoppel are legal pleas
and cannot be seriously objected and to give a fair trial by affording adequate opportunities to both parties it is required that the grant of leave for
filing additional written statement is just and necessary.
Further the Honourable Supreme Court held in the judgment reported in Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc.,
that adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new
cause of action.
It is further held in that judgment that in the case of amendment of written statement, the Courts are inclined to grant liberty in allowing the
amendment of written statement than of plaint and inconsistent plea can be raised by the defendants in the written statement. Therefore, from the
above principles laid down by the Honourable Supreme Court and our High Court it can be inferred that even in the case of amendment of written
statement, the Courts have held that liberal approach must be taken. As stated supra, in the case of receipt of additional written statement, the
admission made earlier is not wiped out and is going to be kept intact and therefore, even though a different stand is taken in the additional written
statement, no prejudice will be caused to the plaintiff. Further, it is made clear from the aforesaid judgments, additional written statement or
amendment of written statement cannot be allowed, when it causes serious prejudice to the plaintiffs or irretrievable damage will be caused to the
plaintiffs by allowing such application.
In this case, by reason of the stand taken by the revision petitioners in the additional written statement, no prejudice is caused to the plaintiff
and as a matter of fact, the plea taken in the written statement only supports the case of the plaintiffs. The suit was filed by the plaintiffs for partition
and in the additional written statement, the revision petitioners did not change their stand regarding the status of the plaintiffs. In the additional
written statement, the defendants 1 and 2 did not state that the plaintiffs are also entitled to a share in the properties. Only in respect of the Item
No. 3 of the schedule properties, a different stand has been taken by the revision petitioners. Having regard to the facts of this case even assuming
that the stand taken by the revision petitioners is accepted that will not help the plaintiff to get the decree for partition and it may affect the rights of
the respondents 4 and 5. Admittedly, the 3rd item of the property was in the name of the deceased Dr. Selvaraj and even assuming that the sale by
the defendants 1 and 2 viz., the revision petitioners herein through their power agent viz., 4th respondent is valid, that will not prejudice the right of
the plaintiffs, if the plaintiffs were able to prove that the first plaintiff is the wife and the 2nd plaintiff was borne to Dr. Selvaraj and in that case they
are entitled to claim share.
Even as per the original written statement, the rights of the plaintiffs in respect of the 3rd item of the property cannot be prejudiced if they are
able to prove that they are the legal heirs of Dr. Selvaraj. If the additional statement is allowed, the 4th and 5th respondents may be affected. In the
original written statement, the revision petitioners accepted the sale in respect of 3rd item and in the additional written statement, the revision
petitioners have taken a different stand that fraud has been practised on them by the 4th respondent. As held by the Honourable Supreme Court in
various cases that the amendment or additional written statement can be considered if they are necessary for the final disposal of the dispute before
them. In this case, even after allowing of additional written statement, the plaintiff will not be prejudiced as they will have to prove their status for
getting a decree for partition. In so-far as the respondents 4 and 5 are concerned, they cannot seek any relief in the suit for partition filed by the
plaintiffs and hence, by allowing the additional written statement, their rights will not be prejudiced and they will have to establish their right in a
separate proceedings and the different stand taken by the revision petitioners in the additional written statement will not prejudice their right in
proving their case that the sale in favour of the 5th respondent was a valid sale and that cannot be decided in the suit. The reason being even
assuming that the sale in favour of the 5th respondent by the 4th respondent as power agent of the revision petitioners is nor valid, that will not
affect the rights of the plaintiffs when they are able to establish that they are also the legal-heirs of Dr. Selvaraj along with the defendants 1 and 2.
Hence, by allowing the additional written statement, the right of the plaintiffs is not going to be affected and this aspect was not taken into
consideration by the trial Court, while rejecting the application.
Hence, the order of the lower Court is set aside and accordingly, this civil revision petition is allowed. Consequently, connected Miscellaneous
Petition is closed. No costs.